Identifying and Advocating Best Practices in the Criminal Justice System. A Texas-Centric Examination of Current Conditions, Reform Initiatives, and Emerging Issues with a Special Emphasis on Capital Punishment.

Monday, 04 May 2009

Charles Dean Hood Did Not Receive a Fair Trial

That's the bottom line of State District Judge Greg Brewer's Finding of Facts and Conclusions of Law in the case of Charles Dean Hood. The review came in spite of the state's best attempt to cover up and bury a long-secret affair between Hood's trial judge and prosecutor.

The last time
we checked in on law and justice in Collin County, Texas, Matthew
Goeller had almost single-handedly stopped an execution less than two
hours before it was scheduled to begin. The former assistant district
attorney had sworn under oath in an affidavit that the trial judge in
Charles Dean Hood’s capital murder case in 1990 had been having an
illicit affair with the prosecutor in the case.

Goeller’s belated act of courage - he had known about the affair
for decades before he went public with the information - has begun to
force the state of Texas, grudgingly it seems, to do the right thing.
Hood’s scheduled execution was postponed. An appellate court authorized
an honest review of the unthinking conduct of former judge Verla Sue
Holland and former prosecutor Thomas S. O’Connell, Jr. On Friday, a
judge formally confirmed Goeller’s story.

Holland, the judge, and O’Connell, the prosecutor, “were involved
in an intimate sexual relationship prior to Hood’s capital murder
trial,” reads the Collin County District Court order. Neither disclosed
that fact to Hood or to his attorneys before, during or after the
trial. In fact, Collin County District Judge Greg Brewer found the
lovers, both of whom were married to other people, “took deliberate
measures to ensure that their affair would remain secret” even when
specifically confronted by others, including defense representatives,
about their relationship.

Holland and O’Connell, the court ruled Friday, “wrongfully withheld
relevant information from defense counsel prior to and during the
trial, the direct appeal, the state habeas proceedings, the federal
habeas proceedings, and the successive state habeas proceedings.” This,
Judge Brewer unsurprisingly found, amounted to a deprivation of Hood’s
constitutional right to a fair trial. So he recommended to his bosses
at the appeals-court level that they grant Hood a new trial, 19 years
after his last one, to fix a problem that is plain for all to see.

The Court of Criminal Appeals now has the matter and its record in
capital cases is not a particularly auspicious one. This is the court,
remember, that directly and deliberately defied the United States Supreme Court in Miller-El v. Dretke, an infamous capital case
involving racial discrimination in jury selection. The
increasingly-frustrated justices kept sending the case back down to
Texas with instructions to better protect the defendant’s rights. And
the Criminal Court of Appeals, and the 5th U.S. Circuit Court of
Appeals, kept failing to take the hint.

A judge has
ruled that death row inmate Charles Dean Hood should get another chance
to argue before the state's highest criminal court that he did not get
a fair trial – even though it has been 19 years since his case went to
court.

State District Judge Greg Brewer on Friday ruled
that Hood had not waited too late to raise the issue of an improper
relationship between the judge who presided over his trial, Verla Sue
Holland, and then-Collin County District Attorney Tom O'Connell.

The state's "hands are unclean," said Brewer, who was instructed by the
Texas Court of Criminal Appeals to examine the issue.

"It
is the appearance of impartiality that is damaging to the public's
confidence in the integrity of the judicial process," the judge wrote.

Hood was convicted in the 1989 robbery and murder of Ronald Williamson
and Tracie Lynn Wallace in Plano. For years, his attorneys had tried to
raise the issue of whether the relationship between judge and
prosecutor had affected the trial, but his attorneys said they had
little to go on other than speculation.

Hood came within
a couple of hours of being executed last summer when his attorneys
raised the issue again in a last-ditch effort as his death warrant
expired.

A couple of weeks before Hood's June execution
date, the defense attorneys found a former assistant district attorney
who filed an affidavit indicating he was aware of the relationship.

Then in September, Hood's attorneys finally got the proof they needed
by forcing depositions from the two parties under a civil procedure. At
that time, Holland and O'Connell admitted to having a sexual
relationship before Hood's trial, which had not been revealed to the
defense at trial or during years of appeals.

Prosecutors claimed Hood had waited too long to raise the issue of judicial bias.

In November, after staying Hood's next execution date to consider
another issue, and after the case received nationwide attention, the
court of criminal appeals asked the lower court to make a
recommendation on the timeliness issue.

A district judge ruled that a death row inmate did not receive a
fair trial due to recent proof that the judge and the district attorney
that tried the case were having a sexual affair.In November
2008, Judge Greg Brewer of the 366th Judicial District Court of Collin
County had been directed by the Texas Court of Criminal Appeals to make
his recommendation whether convicted killer Charles Dean Hood’s claim
of an unfair trial was raised in a timely manner.Today, Brewer
issued Findings of Fact and Conclusions of Law that concludes that
attorneys for Hood discovered proof of Judge Vera Sue Holland and
District Attorney Tom O’Connell’s secret, sexual relationship in a
timely fashion and that Hood’s attorney are not at fault for not
discovering this information earlier because the parties kept it secret
for so long.In his recommendation to the CCA, Brewer determined
Hood should be able to raise judicial bias claims and that the affair
between the judge and the district attorney violated his right to a
fair trial.Brewer found that Holland and O’Connell did not
abide by their ethical and constitutional duties during the 1990 trial
and conviction of Hood.According to court records, Brewer
states: “Judge Holland and Mr. O’Connell took deliberate measures to
ensure that their affair would remain secret,” and “Judge Holland and
Mr. O’Connell did not abide by their ethical and constitutional duties
to disclose the fundamental conflict caused by their relationship.”In
attempts to keep their affair secret, Brewer states “Mr. O’Connell
misled habeas counsel during the successive state habeas proceedings
and Judge Holland resisted counsel’s investigative efforts.”

Not quite a year ago, Charles Dean Hood was on the verge of being
put to death in Texas when an execution order expired. A few months
later, a last-minute appeal was granted within hours of another
scheduled execution.

Now he seemingly has some likelihood of overturning his conviction,
based on an admitted long-ago affair between the judge and the
prosecutor who tried his first-degree murder case. In findings of fact and conclusions of law
filed today, a Collin County judge asked by the Texas Court of Criminal
Appeals to consider whether Hood waited too long to pursue a habeas
petition has found in his favor, both on this question and on the issue
of whether Hood has a proper basis for a habeas appeal.

It was not the fault of Hood and his counsel that the affair between
former Collin County District Judge Verla Sue Holland and former Collin
County District Attorney Thomas S. O'Connell Jr. didn't come to light
earlier, writes Judge Greg Brewer in his filing today. Both kept the
affair secret, he writes, and Hood's defense team tried without success
to substantiate rumors of the affair in 1995, 1996, 2005 and 2008.

"Judge Holland and Mr. O'Connell wrongfully withheld relevant
information from defense counsel prior to and during the trial, the
direct appeal, the state habeas proceedings, the federal habeas
proceedings, and the successive state habeas proceedings," Brewer
finds. "Indeed, Mr. O'Connell misled habeas counsel during the
successive state habeas proceedings and Judge Holland resisted
counsel's investigative efforts."

After serving on the Collin County bench, Holland sat as a judge on
the Texas Court of Criminal Appeals until 2001, Brewer notes.

Holland and O'Connell had a "duty to disclose the fundamental
conflict caused by their relationship," he concludes. And, "in the face
of rumors of an affair, Hood was entitled to presume that Judge
Holland's and Mr. O'Connell's behavior—refusing to recuse themselves
from cases Mr. O'Connell personally prosecuted in Judge Holland's
courtroom—indicated that the rumors were false."

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The StandDown Texas Project

The StandDown Texas Project was organized in 2000 to advocate a moratorium on executions and a state-sponsored review of Texas' application of the death penalty.
To stand down is to go off duty temporarily, especially to review safety procedures.

Steve Hall

Project Director Steve Hall was chief of staff to the Attorney General of Texas from 1983-1991; he was an administrator of the Texas Resource Center from 1993-1995. He has worked for the U.S. Congress and several Texas legislators. Hall is a former journalist.